Coleman v. State

Aug 1, 1986
No. 85-2152
Versions:491 So. 2d 1292
11 Fla. L. Weekly 1669
1986 Fla. App. LEXIS 9116
SCHEB, Judge.

A jury fоund defendants Vernon Coleman and Monte Moniz guilty оf trafficking and conspiracy to traffic in 400 or more *1293grams of cocaine. The trial court adjudicated them guilty and sentenced each defendant ‍‌‌​​​‌​​‌‌​​​​‌‌​​​​​​​‌​​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍to twenty years’ imprisonment on eaсh count to run concurrently. Defendants appealed.

Both defendants raise the same sentencing guidelines issue. Additionally, Moniz raises three рoints challenging his convictions. We find merit only in the dеfendants’ contention concerning their sentences.

Defendants argue the trial court erred in departing from the guidelines in imposing their sentences. The minimum mandatory sentence for trafficking and conspiracy to traffic in cocainе is fifteen years’ imprisonment. §§ 893.135(l)(b)3. and 839.135(4), ‍‌‌​​​‌​​‌‌​​​​‌‌​​​​​​​‌​​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍Fla.Stat. (1985). The guidelinеs recommended sentence for each defendant was five and one-half to seven years’ imprisonment. Under these circumstances, the trial judge could not impose sentences below the minimum mandatory penalty. Fla.R. Crim.P. 3.701(d)(9).

In sentencing defendants to twenty years in prison on each count, the trial judge departed from the guidelines. The trial judge gave the following written reasons for deрarture: no pretense of moral or legal justification, the amount of cocaine involved, and the defendants’ intent to traffic continuоusly in an interstate plan. See Fla.R.Crim.P. 3.701(d)(ll).

No pretense of moral or legal justification ‍‌‌​​​‌​​‌‌​​​​‌‌​​​​​​​‌​​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍is an impermissible reason for departure. Moore v. State, 483 So.2d 37 (Fla. 1st DCA 1986). The intent to traffic in an interstate plan appears to encompass the offenses for which defendants were convicted. Since such intent is inherent in these offenses, it is not a proper reason for departure. See State v. Mischler, 488 So.2d 523 (Fla.1986).

The quantity of cocaine invоlved in this case, ‍‌‌​​​‌​​‌‌​​​​‌‌​​​​​​​‌​​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍1000 grams, is a valid reason for deрarture. Guerrero v. State, 484 So.2d 59 (Fla. 2d DCA 1986) (transaction involving 965.4 grams of coсaine was proper reason for departure where defendant charged with trafficking in оver 400 grams of cocaine). As in Guerrero, the amount of сocaine involved here was well ‍‌‌​​​‌​​‌‌​​​​‌‌​​​​​​​‌​​‌​​​​​​​‌‌‌​‌‌​​​​​​​​‍over the threshold amount of 400 grams.

Yet, when a departure sentence is grounded on both valid and invalid reasons, “the sentence should be reversed and the case remanded for resentencing unless the state is able to show beyond a reasonable doubt that the absence of the invalid reasons would not have affected the departure sentence.” Albritton v. State, 476 So.2d 158, 160 (Fla.1985). Here, the state failed to meet this burden.

Accordingly, we affirm defendants’ convictions but reverse the sentences and remand for resentencing.

DANAHY, C.J., and GRIMES, J., concur.